On December 13, 2018, Bill C-86, the Budget Implementation Act, No. 2 (the “Bill”), received Royal Assent. The Bill sets out substantial changes that affect federally regulated workplaces under the Canada Labour Code, most of which are subject to come into effect in 2019 with staggered implementation dates. A general overview of some of the Bill’s key changes and effective dates are as follows:

Rest periods [effective September 1, 2019]

Employees will be entitled to:

A 30 minute unpaid break for every 5 consecutive hours of work. When an employee is required to be available during the break, it must be paid;

A rest period of at least 8 hours between shifts (however, there is no provision for split shifts or the ability for the employee and employer to agree otherwise) except in the case of an emergency; and

Any unpaid breaks that are necessary for medical reasons or for an employee who is nursing to nurse or express breast milk. In the case of medical breaks, a medical certificate can be requested by the employer in writing.

Leaves of absence

Personal leave [effective date TBD]

Family Responsibility Leave will be replaced with 5 days of personal leave, with the first 3 days being paid after 3 months of continuous employment. Employees will be eligible for personal leave under the following circumstances:

treating personal illness or injury;

carrying out responsibilities related to the health or care of any of their family members;

carrying out responsibilities related to the education of any of their family members who are under 18 years of age;

addressing any urgent matter concerning themselves or their family members;

attending their citizenship ceremony under the Citizenship Act; and

any other reason prescribed by regulation.

Medical leave [effective September 1, 2019]

Existing Sick Leave provisions will be renamed to “Medical Leave” and will now encompass organ donation and medical appointments during working hours.

In the case of an absence of 3 days or longer, the employer may require a certificate issued by a health care practitioner “certifying that the employee was incapable of working for the period of time that they were absent from work.”

Victims of family violence [effective date TBD]

The first 5 days of leave for victims of family violence will now be paid after 3 months of continuous employment.

Court or jury duty leave [effective September 1, 2019]

Employees will be entitled to an unpaid leave of absence to attend court to appear as witness, act as juror or participate in jury selection process. There will be no limitation on the length or frequency of these leaves.

Other leaves [effective September 1, 2019]

Employees will no longer be required to complete 6 months of continuous service before being entitled to Maternity Leave, Parental Leave, a Leave Related to Critical Illness or a Leave Related to Death or Disappearance.

Vacation and holiday pay [effective September 1, 2019]

Vacation pay

Vacation entitlements will be increased to the following:

Continuous Service Requirement

Vacation Entitlement

1 year

2 weeks’ vacation (or 4% vacation pay)

5 years

3 weeks’ vacation (or 6% vacation pay)

10 years

4 weeks’ vacation (or 8% vacation pay)

Holiday pay

The current exclusion for general holiday pay for holidays that occur within an employee’s first 30 days of employment will be removed. Holiday pay must be at least equal to 1/20th of the employee’s wages (excluding overtime earnings) for the four-week period immediately preceding the week in which the holiday occurs.

Notice of schedule [effective on a day to be fixed by order of the Governor in Council]

Employers will be required to provide a minimum of 96 hours’ written notice before implementing a schedule. In instances where less than 96 hours are provided, an employee has the right to refuse any shift within 96 hours of receiving notification of the schedule.

Employers may provide less than 96 hours’ notice of schedule in the case of emergency, where a collective agreement specifies otherwise or where the change in schedule was requested by the employee under a “Flexible Work Arrangement” (as per Bill C-63).

Termination of employment

Group terminations[effective on a day to be fixed by order of the Governor in Council but no earlier than September 1, 2019]

The Bill will supplement the existing 16 week notice to the Minister with a concurrent requirement for notification to all affected employees who are defined as “redundant employees” under the Code. These employees will be entitled to an individual notice of at least 8 weeks which could be satisfied by way of written notice, pay in lieu or a combination thereof.

Employers will also be required to provide a statement of benefits setting out the affected employees’ vacation benefits, wages, severance pay and any other benefits and pay arising from their employment.

Notice periods [effective on a day to be fixed by order of the Governor in Council]

The current notice period will be replaced with the following graduated notice system:

Minimum Service Requirement

Notice Period Entitlement

3 months of continuous service

2 weeks’ notice

3 years of continuous service

3 weeks’ notice

4 years of continuous service

4 weeks’ notice

5 years of continuous service

5 weeks’ notice

6 years of continuous service

6 weeks’ notice

7 years of continuous service

7 weeks’ notice

8 years of continuous service

8 weeks’ notice

Employers will also be required to provide employees with a statement of benefits setting out the affected employee’s vacation benefits, wages, severance pay and any other benefits and pay arising from their employment.

Unjust dismissal [effective on a day to be fixed by order of the Governor in Council but no earlier than September 1, 2019]

The Bill will amend the unjust dismissal complaint mechanism under the Code to allow for summary dismissal of complaints before the Canadian Industrial Relations Board (CIRB).

Inspectors with the federal Labour Program will also be permitted to deem a complaint as withdrawn if an unsettled manner was not referred to the CIRB for adjudication by the complainant following notification by the Labour Program.

The CIRB will also be given the power to suspend a complaint where it is satisfied that the complainant must take additional measures, or reject a complaint in its entirety if:

the complaint is not within its jurisdiction;

the complaint is frivolous, vexatious or made in bad faith;

the complaint has been settled in writing between the employer and the complainant;

there are other means available to the complainant to resolve the subject matter of the complaint that should be pursued;

the subject matter of the complaint has been adequately dealt with through another proceeding; or

if previously suspended by the CIRB, the measures specified in the notice to the complainant were not taken within the specified period.

Equal pay [effective on a day to be fixed by order of the Governor in Council but no earlier than September 1, 2019]

No employee (including part-time, casual, contract or seasonal) may be paid less than what is paid to full-time employees who perform the same job. The rule will apply unless there are objective reasons to justify a differential wage rate such as seniority or merit.

Employees will have a right to request a review of their wages and employers will be required to respond by either increasing their wage rate or providing a written explanation justifying the difference.

Temporary help agencies [effective on a day to be fixed by the Governor in Council with some restrictions]

Temporary help agencies will be subject to a number of prohibitions regarding the payment of fees and the restriction of employees of the temporary help agency entering into employment relationships with clients of the agency, similar to those found under several provincial ESAs.

Temporary help agencies will also be required to uphold equal pay provision for their employees and will be prohibited from paying their employees less than the employees of their client who perform the same job unless there are objective reasons to justify a differential wage rate such as seniority or merit.

Employees of these agencies will also have the right to request a review of their wages and the agency will be required to respond

Occupational health and safety [effective on a day to be fixed by order of the Governor in Council but no earlier than September 1, 2019]

The Bill will amend Part II of the Canada Labour Code, Occupational Health and Safety, and increase the powers of the Head of Compliance and Enforcement within the Ministry. In some instances, where the Minister would have been previously accountable for decisions around workplace safety, the Head will now be responsible. In others, the decision and determination may be made by either the Head or the Minister.

Parental sharing benefit [effective on a day to be fixed by the Governor in Council]

The Bill will also amend the Employment Insurance Act to implement a new parental sharing benefit. These changes are intended to encourage two-parent families to share parental leave by making additional weeks of Employment Insurance benefits available where sharing of such benefits occurs.

The new parental sharing benefits will only be available to parents of children who were born or placed with the claimants for adoption on or after the amendments to the Act come into force.

Federal pay equity [effective on a day/days to be fixed by the Governor in Council]

New pay equity framework will be introduced for federally regulated employers with more than 10 employees.

Pay equity plan

Employers with 10 or more employees will be required to establish and enact a pay equity plan within three years.

Generally, for unionized employers with 10 or more employees or a non-union workplace with 100 or more employees, a joint pay equity committee must be established and meet certain statutory requirements. These obligations may differ depending on the number of employees in the workplace and whether the workplace is unionized or non-unionized.

Among other things, the employer or committee will be required to conduct a full review of jobs that are part of the plan and solicit feedback from employees on the proposed plan. Once a plan has been adopted, it must be updated once every five years to identify any gaps that may have emerged.

Employers will also be required to provide an annual statement to the Commissioner and maintain certain records relating to the plan including any updates.

The Pay Equity Commissioner

The Act will create a new role for a Pay Equity Commissioner who is responsible for monitoring the implementation and compliance of the Act. The Commissioner will also have the authority to conduct or order compliance audits and/or investigations as required.

The Act also establishes a dispute resolution mechanism which allows disputes to be filed with the Commissioner who must attempt to assist parties in settling the matter or determine whether matters are not appropriate for settlement or cannot be settled by the parties. In certain instances, the Commissioner may dismiss or refer matters to the Canadian Human Rights Tribunal for determination.

Canadian Human Rights Act

The role of the Commissioner and any disputes under the Act will be added to the responsibilities of the Canadian Human Rights Commission.

The “Pay Equity Commissioner” will be added to the members of the Canadian Human Rights Commission and a “Pay Equity Unit” within the Commission will be formed. In addition, a “Pay Equity Division” to deal with complaints of discriminatory practices related to pay equity will also be established.

Other changes affecting federally regulated workplaces

Other changes include:

Increase to the minimum age of employment from 17 to 18 years of age [effective on a day to be fixed by the Governor in Council];

A requirement to provide employees with Ministerial publications on rights and obligations within a specified time period [effective on a day to be fixed by the Governor in Council];

A requirement to provide employees with a “written statement containing information relating to their employment that is prescribed by regulation” as well as any updates within a specified time period [effective on a day to be fixed by the Governor in Council];

An update to requests for medical documentation in support of leaves of absences to require certificates from a broader class of “health care practitioners.” [effective September 1, 2019]

By Tim Lawson, Kyle Graham and Caroline-Ariane Bernier

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McCarthy Tétrault through their Employer Advisor blogs offers their perspectives on the latest legal developments applicable to the workplace. It provides their insights on legislative and regulatory developments, as well as new case law, while providing practical tips for employers and their human resources professionals when managing the workforce. McCarthy Tétrault is a Canadian law firm that delivers integrated business law, litigation services, tax law, real property law, labour and employment law nationally and globally. Several of their blog posts will be republished with permission on First Reference Talks. Read more

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